37 So. 2d 536 | Fla. | 1948
Although the appellee made no allegation of adultery against his wife (appellant), and Chancellor found her guilty, and because of such finding, dismissed her bill of complaint. The evidence of indiscreet conduct on the part of appellant falls far short of being proof of adultery when measured by the yardstick prescribed by this Court in McMillan v. McMillan,
We have not overlooked the pronouncements of this court in those cases which hold that the Chancellor's order or decree will not be reversed simply because his findings were erroneous if the order or decree is found to be without error. However, in the instant case the Chancellor's order shows clearly that he predicated the exercise of his discretion directly upon the finding that both the wife and husband were shown by the evidence to have been guilty of adultery. The order of dismissal is interwoven so conclusively by the Chancellor with his finding as to cause said finding to be an integral part thereof.
The cause should be reversed with direction that a decree of divorce be granted to appellant and with leave to the Chancellor *960 to further consider any other equities presented by the pleadings.
It is so ordered.
THOMAS, C. J., TERRELL, CHAPMAN and BARNS, JJ., concur.
ADAMS and SEBRING, JJ., dissent.
